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Thursday, February 22, 2018

Tinker wept

upon reading this missive from the superintendent of the Needville (TX) School District. Some of the quotations reflect an unfortunate picture of the connection between education and the creation of an engaged People in a democracy. "A school is a place to learn and grow educationally, emotionally and morally," which somehow does not include caring or becoming involved in matters of public concern. Students must "[r]espect yourself, your fellow students and the Needville Independent School District and please understand that we are here for an education and not a political protest." So speaking on matters of public concern is not educational and is a sign of disrespect for oneself and other (perhaps respect is the new unity that I argue is anathema to free expression).

Rhodes can do this and get away with it. A student walk-out would constitute "disruption" by in-school speech that schools are free under modern student-speech doctrine to halt or punish. He couched it in an unfortunately over-officious tone and a genuine disrespect for students as individuals with First Amendment rights. It appears he believes students do shed their First Amendment rights at his schoolhouse gates.

I am interested to see if and how students may respond to this if committed to engaging in protest. How might Rhodes respond to a silent protest with black armbands--is he going to ignore Tinker? And, whatever the trend in student-speech cases, is a court? Alternatively, if protests gain sufficient critical mass and Rhodes attempts to suspend hundreds of students, would his job survive the parental anger? Alternatively, what if students all stay home that day and then attend a protest at a dedicated time--would Rhodes challenge the decision of dozes or hundreds of parents to keep their children home and would his job survive the parental anger if he tried?

Posted by Howard Wasserman on February 22, 2018 at 11:40 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


Does the first amendment use the words "public concern"? I don't remember reading the words "public concern" in the first amendment anymore than the words "congress shall make no law" in the second, fourth, or fifth amendments--that Justice Marshall added to them in Baltimore, 1833.

Perhaps if we just read the laws with the words that were included in them after congress passed them, we wouldn't have these problems of interpretation.

“Whatever was said in the debates on the bill or in the reports concerning it preceding its enactment or during its enactment must give way to its language -- or, rather, all the reasons that induced its enactment and all of its purposes must be supposed to be satisfied and expressed by its words, and it makes no difference that in discussion some may have been given more prominence than others, seemed more urgent and insistent than others, presented the mischief intended to be remedied more conspicuously than others.”
-Mackenzie v. Hare, 1915

Posted by: Scalia Canoe and Sailboat, Inc. | Feb 22, 2018 2:20:21 PM

You would never limit advertising speech to matters of "public concern". If advertising speech, which has less constitutional protection than political speech, enjoys protection on all matters public or private, shouldn't political speech contain the same protection?

"[Note 13] Similarly, we have rejected the arguments for denying or restricting First Amendment protection of advertising on the ground that advertising is not a matter of public concern. Recognizing that even pure advertising may well be affected with a public interest, we have stated that
"the free flow of commercial information is indispensable . . . to the formation of intelligent opinions as to how [our economic] system ought to be regulated or altered."
Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 425 U. S. 765 (1976). See also Bigelow v. Virginia, 421 U. S. 809, 421 U. S. 822 (1975) ("Viewed in its entirety the [abortion] advertisement conveyed information of potential interest and value to a diverse audience -- not only to readers possibly in need of the services offered"). The potential political aspect of attempts to influence consumer preferences has also been recognized. See Metromedia, Inc. v. San Diego, 453 U. S. 490, 453 U. S. 538-539 (1981) (BRENNAN, J., concurring in judgment) ("May the city decide that a United Automobile Workers billboard with the message Be a patriot -- do not buy Japanese-manufactured cars' is `commercial' and therefore forbid it?"). The greater state latitude for regulating commercial advertising is instead a function of "greater objectivity and hardiness." Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., supra, at 425 U. S. 772, n. 24.
-Justice Brennan’s dissent in Dun & Bradstreet v. Greenmoss, 1985

Posted by: Speak softly and carry a big Brennan | Feb 22, 2018 2:34:39 PM

Wait, this is happening in Texas? Where the courts said that college students could carry empty holsters to class because that action constituted a form of protest protected by the free speech clause. (Clayton Smith v. Tarrant County College District, 2010)

So carrying an empty holster is a form of speech, but an anti-gun/pro-gun-control protest is not a form of free speech because the students are under 18? So they're old enough to have an abortion, but not old enough to protest? Not sure that's how the U.N. convention on child's rights works.

Posted by: Red Dawn, Blue Twilight | Feb 22, 2018 2:45:26 PM

What is school for? To paraphrase Jonathan Haidt of Heterodox Academy---

"Confine not yourself always to one sort of company, or to persons of the same party or opinion, either in matters of learning, religion, or the civil life, lest, if you should happen to be nursed up or educated in early mistake, you should be confirmed and established in the same mistake, by conversing only with persons of the same sentiments. A free and general conversation with men of very various countries and of different parties, opinions, and practices, so far as it may be done safely, is of excellent use to undeceive us in many wrong judgments which we may have framed, and to lead us into juster thoughts."
-The Improvement of the Mind by Isaac Watts, 1821

Posted by: Getting Heterodoxxed online | Feb 22, 2018 2:50:53 PM

I think Needville (TX) School District needs us more than we need them. Maybe if they were required to teach a year of first amendment law to all seniors they wouldn't forget this.

Posted by: Not a Needville Rhodes Scholar | Feb 22, 2018 3:07:39 PM

If the first amendment bans school uniforms to make sure that all students can wear NRA shirts to school any day of the year, then certainly it would also protect gun-control protests.

On the other hand, if the first amendment didn't protest the right to wear what you wanted, then it probably also wouldn't protect your right to protest. So private school students who can't wear what they want probably also can't say what they want either.

Posted by: Shirt is expression | Feb 22, 2018 3:12:58 PM

This post would read a lot better if you explained that "Rhodes" is the superintendent. It does sound like a pretty ridiculous memo.

Posted by: Asher Steinberg | Feb 22, 2018 3:14:18 PM

Who was it that promoted school uniforms, thereby destroying students free speech rights? Oh yeah, it was Bill Clinton, that's why we had to defeat his wife.


I challenge all our schools to teach character education, to teach good values and good citizenship. And if it means that teenagers will stop killing each other over designer jackets, then our public schools should be able to require their students to wear school uniforms.

Posted by: Always Trump-er | Feb 22, 2018 3:31:58 PM

As if anybody here still believes in the "hazardous freedoms" endorsed by Tinker...

Posted by: YesterdayIKilledAMammoth | Feb 22, 2018 3:33:26 PM


Tinker was during a time of much better race-relations that we have today. What happened to Freddie Gray and Michael Brown would've never happened in the peaceful era of the 1960s. We have to understand that we live in a much more violent world today than we ever did in our nation's past. We can only pray that the future can bring the past back to life.

Posted by: TomorrowISackAQuarterback | Feb 22, 2018 3:49:47 PM

"how students may respond"

In Clinton's 1996 State of the Union, he endorsed school uniforms. In 2001, the courts upheld school uniforms--Littlefield v. Forney Independent School District. So when Clinton's wife ran for president, the students responded to the suppression of their speech by voting in Trump.

That's how students respond.
Obama could've stopped Trump by banning school uniforms instead of passing Obamacare--that merely led to people voting for Trump to remove the individual mandate.

Posted by: Repubs defend speech | Feb 22, 2018 4:23:36 PM

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